The event was attended by numerous students, professors and faculty members actively involved in the organizing of the event, like professors Prabhpreet Singh, Albin Anto, Akshaya Kishor Srivastava, and the dean of the Faculty of Law at that moment, (Dr) Jayaram E.R. (https://jaipur.manipal.edu/FoL/about-fol/leadership/Dean-FoL.html), being also supported by the Head of the Department, Professor Sonu Agarwal.
The title of my Presentation was The role of federalism and coexistence in the future of European Union and was structured as follows:
I. Introduction
II. State of play. The EU’s constitutional framework and the regulation of constitutional justice
III. Convergences and divergences within the cooperation of the courts
IV. Conclusions. Constitutional justice and the future of the EU
In the Introduction, I mentioned that the presentation is part of the Research Project conducted by the Central European Professors’ Network, which is coordinated by the Central European Academy. The focus of the research is to analyze the future of the European Union (EU) and the processes happening within the EU. I emphasized the premise of the research, which is the EU’s transition towards federalism since the entry into force of the Lisbon Treaty („EU constitutional order”: the autonomy of the EU legal order is at the heart of the idea that the founding treaties of the EU are not “ordinary international treaties”, and therefore EU law is not an “ordinary international law”). However, the EU is currently in a transitional phase, where national and EU processes sometimes conflict with each other. As a result, I raised the main question of our research: „What future for the EU?” and explained the aim of our studies.
Next, I explained the central idea of the book chapter I was writing as part of the project, meaning constitutional justice as a „centripetal force” within the EU (The future of coexistence in the EU and centripetal forces. Constitutional Courts and constitutional justice). From a conceptual standpoint, I began with Professor Martin Belov’s approach regarding an increase in the capacity of the courts (international and supranational) “to shape the fragmented and the explicitly or predominantly implicitly transferred state sovereignty”. I also emphasized that the discussions on the EU’s future should give specific consideration to the constitutions of the Member States and their “tectonics”, whether we are talking about amendments or interpretations of the constitutions (which most of the time replace/supplement the need for amendment). Theoretically, “the legal basis of the EU is not put at the disposal of the EU”; they remain in the will of the Member States (“masters of the treaties”) because only the States are authorized, in accordance with their own constitutions or adapting them accordingly, to amend the treaties and determine which sovereign rights/powers they assign to EU. As, however, according to a famous formula, “Constitution is what the judges say it is”, the issue of the will of the States must be approached taking into account, inter alia, the evolution of constitutional justice in EU (constitutional/supreme courts). This evolution has some specific features: constitutional courts”are no longer limited to the interpretation of national constitutional law in isolation. For the constitutional courts of the Member States of the EU, Union law is the primary factor of influence”; the decisions of the constitutional courts influence the evolution of EU law and constitutional interpretation considers various factors such as traditions, historical and social context, and their connection to EU law; this process aims to resolve differences and align national legal systems to the EU model; constitutional adaptation through interpretation may also result in disagreements, which has been evident in the constitutional history of the EU; to better understand the construction of the EU as a structure of State, it is necessary to examine the actions of the Court of Justice of the European Union (ECJ) and its relation with the constitutional courts of the Member States. Consequently,I have tried to identify in my study and reflect in the dissemination event some of the main challenges of constitutional justice as centripetal force in the EU, leaving room for further analysis and considerations within the topic.
In the Section I of my presentation, I have discussed about National constitutions and the legal integration of the EU order, Courts and models of constitutional review, EU Treaties as a quasi-constitution and ECJ acting as a quasi-constitutional court, Horizontal and vertical relationships between Courts.
I emphasized that thefragmentation in terms of constitutional regulations and constitutional judicial review results in legal consequences in terms of the effects of the decisions pronounced by the courts, as well as in horizontal and vertical relationships between them. These relationships are essentials for the role of centripetal force of constitutional justice in the EU. Establishing the boundaries of jurisdiction for different courts in relation to EU law and ECJ jurisdiction, as well as enhancing these relationships, requires a significant time and effort through judicial dialogue, sedimentation, and refinement. In the construction of this “puzzle” of European constitutional justice – European Court of Human Rights (ECtHR), has become increasingly involved in the „multilevel sovereignty games” by backing the ECJ, particularly concerning the responsibility of courts to send preliminary references. I concluded that EU could be seen as a constellation of courts, with fluctuations and even competition in “shine” (developing the controversy over the ‘ultimate arbiter’ of the constitutionality of law).
The relationships between courts of law – constitutional courts – ECtHR – ECJ have determined convergences, but also divergences and, as for the constitutional courts, even their erosion.
In the Section II of the presentation I have discussed about Constitutional review of EU Treaties with reference to the concept of “the filtering effect” belonging to professor Dieter Grimm, and also about Implementation of EU Law in the Member States.
Thus, I emphasized that the constitutions of Member States act as “filters” on the development of primary European law since any changes made to the constitutive treaties must be coherent with the constitutional framework of the Member States. As this compliance is verified, with the particularities stated above, by the Constitutional Courts, their “voices” has a particular weight on establishing the EU’s normative/constitutional framework. Through the decisions they issue, the Courts provide the “green light” to ever closer integration and, simultaneously, a national perspective on this integration, emphasizing limits, but also necessary steps for developing the EU’s constitutional order. This contribution particularly expresses the role of the centripetal force of constitutional justice, as long as, in this way, bridges are built between the national structures regulated in the constitutions and the constitutional core of the EU/founding treaties. In addition to the “filtering effect”, it is important to consider the power of CCs to verify amendments to their own constitutions. It is essential to analyse this dimension because, as the German Constitutional Court stated, “every transfer of sovereign rights results in an alteration of the constitutionally defined system of competences and thus in substance a constitutional amendment”.
Further, I analysed the implementation of EU Law in the Member States through at least three different aspects: interpreting constitutional provisions in a way that avoids conflicts; referring to ECJ jurisprudence in their decisions; utilizing the mechanism of preliminary reference as a direct way to communicate with the ECJ. I developed in this context, under the title Bridges and Walls: Protection of human rights and counter-limits, especially the process of convergence in the field of human rights – lights and shadows. I explained that in the process of implementing EU law, the protection of human rights demonstrates the functioning of the centripetal mechanism associated with constitutional justice to the highest degree („a process of convergence is occurring in Europe in the field of fundamental rights”). This „process of convergence” is very complex due to the coexistence of different catalogs of human rights, including constitutions, the Charter of Fundamental Rights of the European Union, and the Convention for the Protection of Human Rights and Fundamental Freedoms. Each catalog offers standards of protection, and each level has its own „guardian,” including the constitutional courts, the ECJ, and the ECtHR. Given the vital role of fundamental rights, the question arises of how to reconcile these sources and voices to prevent legal insecurity for European citizens. Identifying solutions to this problem leads to the creation of „bridges,” aiming for a higher coherence of the European legal order.
Since constitutional justice in the EU and, in itself, its centripetal potential, does not mean always harmony, I have also discussed about good ”fights”, bad ”fights” and ”pathology” of the constitutional conflicts, effects following conflicts and how constitutional courts affect political transformations
In the Conclusions, I have laid the groundwork for further exploration of the ideas presented in my extended study (book chapter) and emphasized key aspects in this regard.
My first conclusion was that constitutional justice is a driving force of EU constitutionalism. Whatever “good” or “bad” moments, the relationship between courts continuously shapes the EU legal order.
The second conclusion refers tothe operating of this “judicial network” itself, meaning the foundations and type of relations between the Courts in the EU. The cooperation of the constitutional courts should be grounded on values like independence, loyalty and honest collaboration, as a key to the proper functioning of the centripetal mechanism of European integration based on the cooperation of the courts.
The third conclusion (reflection) – the future of EU – Accepting the centripetal role of constitutional justice in the EU, it would be interesting to answer to the question where does this centripetal force lead us to, as a structure of States. From the constitutional point of view, the EU is an original construction. The diversity, which is unique, distinguishes it from the start in relation to any current federal structure. Unity in diversity is the official motto of the EU, suggesting centripetal tendency (unity), yet unattainable differences (diversity), reflected in both state entities and constitutions. The myth of the final authority must be removed. National courts are not subordinate to the EU, but national and supranational judges are European judges with a share responsibility to apply EU law and guide the change of the legal order.
The topic sparked lively debates, and I was thrilled to witness the exceptional quality of the academic team and the remarkable enthusiasm of the students. The discussions on EU law and the comparative law perspective were particularly engaging. The students asked interesting questions, especially with a focus on federalism and the system for the judicial protection of human rights in EU (compared with India). Some testimonials posted on LinkedIn emphasized this interest, like the post of Mihika Saraf, 4th-year law student at Manipal University Jaipur. She was one of the students who asked questions and expressed her clear intention to continue studying in this field. She mentioned, among others, that „this discourse added a new chapter in the subject of Comparative Constitutional Law, and witnessing such a thought-provoking session piqued my interest to take this discussion further. I also seized the opportunity by asking a few questions, which, to my delight, unveiled new avenues for my career.” She also returned after the presentation to ask about the relationship between European courts and the issue of supremacy/primacy. This was a good opportunity to share materials and provide a general background concerning the relationship between courts at the EU level. Other student participants, such as Shinjini Bansal and Debajit Chanda, first-year students, appreciated the session as „insightful and informative” and „a great opportunity for us to learn about the European Union and its Member States.”
In addition to the debates themselves, I appreciate as a valuable dissemination of the Project the continuation of research and analysis in seminars organized by Professor Prabhpreet Singh, who was actively involved in organizing the lecture. During these seminars, students prepare their own small research projects and presentations based on the CEA Project and lecture’s topic, “The Role of Federalism and Coexistence in the Future of the EU”.
